Content tagged with "Legal cases"

The attention paid to the decision of the Crown Prosecution Service not to prosecute undercover police officers focused, rightly, on the invasion of privacy and bodily integrity in their sexual contact with women they spied on.

In order to prosecute misconduct in public office, the prosecution would have to show that an officer knowingly abused their position in order to bring a sexual relationship about

The police have readily and unequivocally admitted such relationships are abhorrent and an abuse of their position. Speaking for the Association of Chief Police Officers, a body that ran several of the political policing units, Jon Murphy said

It is grossly unprofessional. It is a diversion from what they are there to do. It is morally wrong because people have been put there to do a particular task and people have got trust in them. It is never acceptable under any circumstances … for them to engage in sex with any subject they come into contact with.

there are and never have been any circumstances where it would be appropriate… Such an activity can only be seen as an abject failure of the deployment, a gross abuse of their role and their position as a police officer and an individual and organisational failing

So there we have a police report saying it’s a gross abuse of the officer’s position, but the CPS said there’s insufficient evidence that any officer knowingly abused their position.

Everyone admits the relationships happened and they were a gross abuse. If it is a gross abuse then there is a gross abuser. That must be either the manager who authorised it or the individual undercover officer who did it.

Whichever one it is, former officer Bob Lambert is culpable. He was an undercover officer who had a prolonged relationship including fathering a child with a woman he targeted. After he was promoted to running the squad he mentored Jim Boyling who did the same thing.

If Operation Herne is right and it is both an individual and organisational failing then we should see several officers held responsible for each relationship. Even if they blame the individual officer and claim they disobeyed their guidance, it is negligence on the part of the managers.

But if this came to court, we could expect to see officers from both roles blaming each other. That would be a whole lot of dirty laundry being done in public, and would be likely to point to further abuses. This scandal has already become far too large for establishment comfort. It’s no surprise that the CPS – who helped ensure Mark Kennedy’s evidence was kept from court in the Ratcliffe case, leading to a miscarriage of justice and 20 wrongful convictions – has decided to defy the police’s own admissions of misconduct and keep these officers away from court as well.

BREACH OF THE OFFICIAL SECRETS ACT

The CPS also said that

In order to prosecute a breach of the Official Secrets Act the prosecution would have to prove that the suspect in question disclosed information that would, or would be likely to, damage the work of the security and intelligence services

This is thought to be because officers have named colleagues to civilians. Jim Boyling told the activist he married about several other officers’ identities. This led her to tell Helen Steel that her partner John Barker had in fact been police officer John Dines.

Peter Francis

Additionally, when Mark Kennedy was confronted by activists who had discovered his true identity, he confirmed activist Lynn Watson had actually been a fellow police officer.

Whistleblower officer Peter Francis has been threatened with prosecution under the Official Secrets Act. The fact that neither Boyling nor Kennedy are to face charges for naming colleagues to the activists they targeted implies Francis faces something of an empty threat. The CPS appear to have declared it’s open season for him, and for any other officers who want to right some of their wrongs, to step forward and name names.

The fact that the women consented at the time is irrelevant. Consent can be negated if it is later discovered that there was serious deception involved.

The CPS cited three bits of case law it considered before making its decision. A court decided that Julian Assange’s failure to use a condom after he’d said he would could be rape and should be brought to trial. Another case where a man promised to withdraw before ejaculation, but failed to, was also decided as being capable of amounting to rape. This gives us an indication of the threshold of criminal sexual deceit.

If Julian Assange deserves a trial it is risible to say that these police officers do not. Is anyone seriously suggesting that their profound, prolonged sexual deception lasting years – in several cases having children – is not worthy of a court case, but they would prosecute Mark Kennedy if he had once failed to use a condom as promised?

Conversely, if Assange had been sent into the civil service by Wikileaks and spent many years in a life-partner relationship with a civil servant, solely as part of a spying operation, he would surely be prosecuted for the personal damage he inflicted.

The CPS also mentioned the Justine McNally case. She pretended to be a man in order to have sex with another woman and was jailed for three years in 2013. The Court of Appeal reduced it to a nine month suspended sentence and she was released after 82 days. The conviction stands.

McNally was not an isolated case. Gemma Barker developed three online male personas that she used to deceive young women into having sexual contact with her. In 2012 she was sentenced to 30 months in prison for two counts of sexual assault and three months for one count of fraud.

Trans man Chris Wilson did not tell two female partners of his previous gender before initiating sexual relationships. One relationship involved kissing, a second involved having sex. In April 2013 a Scottish court (whose Sexual Offences Act Scotland 2009 is slightly different to England’s Sexual Offences Act 2003) convicted him of “obtaining sexual intimacy by fraud” and put him on the Sex Offenders Register. He was sentenced to three years probation and 240 hours community service.

There can be no disputing that the secret police’s deceit was on a comparable scale – arguably a far greater one – than McNally’s, Barker’s or Wilson’s. They were not merely lying about their job or the fact that they were already married. They were not just concealing a fundamental truth about themselves that their partners believed they were the opposite of. They were only ever in these womens’ lives as paid agents to undermine and betray those women and what they held most dear. They were living a relationship that was controlled and monitored, perhaps even directed, by a committee of unseen superior officers. This cannot be informed consent. It is abuse.

Whether what the police officers did legally constitutes rape is unclear. Ben Fitzpatrick, Head of Law at the University of Derby, examined the idea from a legal perspective last year over a series of four articles. He concludes that there are several areas in which it is possible that there is a claim.

It is not clear that English law would cover the sexual activities in these cases as sexual offences, and the undercover officers have not been prosecuted.

I do think they should have been charged and prosecuted for these activities. The women would clearly not have consented to sex had they known the men were undercover police officers. I think there is a level of deception in these cases which raises them above the ‘I love you’ sort of deception [where someone pretends to in love to convince someone else to have sex with them].

But, put simply, it is untested. The discussions around the definition are reminiscent of those that happened before rape within marriage was finally legally recognised in England in 1991. The CPS also considered charges of indecent assault against the police officers but, as that has the same consent test as rape, they decided not to prosecute.

What happened to the women deceived by police is rare – and its exposure rarer still – so it doesn’t squarely fit any common definitions based on previous, commonplace crimes. But there is no doubting the seriousness of the psychological and sexual abuse. The legal definition of consent and cases cited above mean there is surely a case to answer.

The inescapable conclusion is that if these men were anything other than police officers they would be prosecuted. The decision not to go ahead is a further part of the cover up of the gargantuan injustice of the political secret police.

For the first time ever, the Metropolitan Police have named undercover officers. Following last month’s court hearing, the Met have been compelled to admit that two Special Demonstration Squad (SDS) officers who deceived women they spied on into long-term relationships were, indeed, police officers.

How can a relationship be genuine when it is based on a massive web of lies? He pretended to be a man with noble ideals and political commitments, when in reality he was a police officer spying on our friendship network.

He pretended he was committed to the future when he always knew he would go back to his real job and wife and kids. That doesn’t show genuine feelings; it is abuse and I would never have consented to such a relationship had I known.

After his deployment, Lambert went on to run the Special Demonstration Squad’s operations. He was Boyling’s mentor and overseer, the very manager who the Met are implying was ignorant of the dangers of sexual relationships. Yet again the Met take a transparently implausible stance and defy the people they abused to disprove it, compounding their already horrific level of personal damage.

The police have been pulled, kicking and screaming, to this first extremely significant development in the litigation brought by the women in their long battle for justice and accountability. It represents a partial victory with the police being forced to acknowledge the identities of undercover police officers who committed serious violations of women’s rights. However, the confirmation does not go far enough, it is mealy mouthed, offensive and lacking in any acknowledgment of the huge abuse of power and harm caused to my clients.

IF LAMBERT GOT IT WRONG, HOW CAN HE BE RIGHT?

Bob Lambert whilst undercover in the 1980s

When the SDS was still a secret unaccountable unit, Bob Lambert was seen as a role model. ‘He did what is hands down regarded as the best tour of duty ever,’ said a former officer. But as their activities get dragged into the light of public scrutiny and mainstream morality, they are seen for what they are. Not even the Met can defend their actions and claim that what happened to those women was in any way acceptable.

Lambert currently holds academic posts at London Metropolitan University and the University of St Andrews, trading on his ‘counter terrorism’ experience. The police proclamation that sexual relationships are unethical further undermines his credibility as an authority on undercover policing. Either he used sexual relationships as a tactic or else he coincidentally got over his ‘mutual attraction and genuine personal feelings’ at the same time as his deployment ended and abandoned his own child without any support from his well remunerated job.

Rather than being trusted to train the next generation of infiltrators, Bob Lambert is more like a case study in how wrong it can go. His continued employment discredits the institutions that hire him.

TWO DOWN, TWO TO GO

Helen Steel

Whilst the Met’s admission of undercover officers’ names is historic, it is the minimum they could get away with. They are still refusing to concede the identity of two other officers in the case, behaviour that’s just as absurd as their earlier refusal to admit the identities of Lambert and Boyling.

These guys were saying that they loved us, that they wanted to be in our lives for the rest of their lives and yet they knew that their posting was going to be ending in just a few years time and that they were going to disappear from our lives and leave us bereft. That is not love, that is abuse.

Blacklist Support Group and PCS picket stand together outside the Royal Courts of Justice, 10 July 2014

A week after the landmark court ruling that ended the police’s blanket use of the ‘Neither Confirm Nor Deny’ policy, another significant step towards justice for victims of Britain’s secret police was taken at the High Court yesterday.

Since the construction industry blacklist was revealed five years ago, hundreds of workers who were on it have been pushing for answers, compensation and assurance that the practice has ended. Under the banner of ‘Own up! Pay up! Clean up!’, they’ve been demanding a credible inquiry and putting pressure on the firms who not only used the illegal database but whose information – ably assisted by Britain’s secret police – formed the content of the blacklist files.

Individual workers have been taking cases against specific companies, but it hasn’t brought results. It has parallels with the cases being brought by women who were deceived into long-term intimate relationships with undercover police officers – as horrific and outrageous as the instances are for the individuals involved, they are part of a wider strategic pattern. To get justice, we have to tackle the concerted effort rather than any one manifestation.

Before they could go in there was something of a dilemma. It was July 10th, day of the huge strike by public sector workers, suggested as the largest since the General Strike of 1926. The Blacklist Support Group met the PCS picket line at the High Court and mutual support was expressed. Given the huge significance of the court case, the union’s branch secretary gave special dispensation to enter the building, and one picket said, ‘I only expect to say this once in my life – you’re welcome to cross the picket line!’

The hearing brought good news – the Group Litigation Order was granted. The victims of the list and the unions backing the case – UCATT, Unite and the GMB – can formally combine their efforts and, more than five years since the illegal list was exposed, the stalling tactics of the culpable can finally begin to be brushed aside.

The case returns to court for a case management hearing in October with a further hearing provisionally set for December.

Last week eight major construction firms involved in the industry’s blacklist made a fresh attempt at giving compensation for their illegal activity and the hardship it caused. It has been roundly dismissed by the workers and unions.

THE BLACKLIST AND STATE SPYING

The construction blacklist was run by a company called the Consulting Association. When the Information Commissioners Office (ICO) raided in 2009 they found 44 firms had used it including most of the big names in the industry. More than 3,000 people were on the list, many with files dozens of pages long including information about their family.

Virtually everything in my file relates to where I have raised concerns about health and safety, asbestos, toilets overflowing on building sites and a young lad falling off the third floor of scaffolding… Throughout my file, there is nothing that mentions my doing anything other than raising concerns about health and safety, conducting normal trade union activities, giving interviews to various organisations and raising concerns about unpaid wages. Nowhere am I accused of doing unofficial strikes or anything like that; that just isn’t the case.

The undercover National Public Order Intelligence Unit (NPOIU) that deployed the likes of Mark Kennedy was only one of three units run by the Association of Chief Police Officers. They also ran the National Domestic Extremism Unit that collated the intelligence from NPOIU officers, and the National Extremism Tactical Co-ordination Unit (NETCU) which advised companies who were the target of protesters. It is known that NETCU met with the Consulting Association but the ICO is refusing to release the details of what went on.

The Metropolitan Police initially dismissed a complaint from the Blacklist Support Group alleging police collusion but, following publication of a posthumous interview with the Consulting Association’s Ian Kerr detailing a meeting with a ‘key officer’ from NETCU, they’ve launched an investigation. There can be no credibility in yet another self-investigation from police who’ve already demonstrated their reluctance on this issue.

In the period between 1996/7 and 2003/04, the Carillion group, (trading as Tarmac/ Carillion/ John Mowlem) paid £83,161.00, and was then the third largest supporter and user of the blacklist. This spending broke down as an annual fee of £3,500, plus a fee of up to £2.20 per name to check information on the unlawful database.

At £2.20 a time, it means they made nearly 30,000 name checks – and there were two even larger users. As the list was secret, there was no way to check the veracity of the information, nor to get off it. Workers were cast out of their trade for life. Some people were never in the trade – one was a teacher who had a file due to being on an anti-racist demonstration. Around 200 environmental activists also had files.

THE INSULT OF THE OFFER

Ian Kerr, the man who was paid £46,000 a year to ruin thousands of lives with the Consulting Association, was fined £5,000. The companies who paid for it were let off with a warning. The eight of those firms in the compensation offer make pre-tax profits of over a billion pounds a year.

This week’s basic compentsation offer is for a fast-tracked £4000, rising to £20,000 for those who can prove discrimination. With blacklisters by definition having suffered hardship and waited years for compensation, many will be tempted to take the offer. For those prepared to spend up to six months arguing and have irrefutable proof of the worst damage done, there is a cap of £100,000 compensation. Some of these people went without work for many years. For a lot of people on the blacklist the loss of earnings exceeds £100,000, and that’s before interest, let alone any consideration of the impacts on their privacy, psychological welfare, their home life and the upbringing of their children. As Dave Smith said,

I was a qualified engineer and during one of the longest building booms this country has ever known, my children were on milk tokens

People had breakdowns, some attempted suicide. Some changed their identities to try to get work. Whilst the companies have issued a statement saying they believe were wrong to use the list, the insultingly paltry figures in this attempt at a settlement suggest otherwise. It appears that their only real regret is that they have been caught.

THE DEMAND FOR JUSTICE

The construction blacklist is yet another example of different pillars of the establishment unethically and illegally working in concert to protect their position. It is further proof of the anti-democratic remit of the undercover police who sought to stifle active politics on the spectrum outside the sliver that is represented in the House of Commons. The construction workers’ fight for truth and justice is another facet of the same struggle of the black justice campaigns, environmentalists, social justice activists, anti-fascists and others who were spied on and abused by Britain’s political secret police.

The case is back in court next week (hence the timing of the new offer of compensation). The blacklist Support Group has organised a protest outside the hearing which has already had pledges of support from union members from UNITE, UCATT, GMB and the RMT as well as environmental activists.

Mike Schwarz of Bindman’s won criminal defence lawyer of the year. He represented two groups of climate protesters, the Drax 29 and Ratcliffe 20, who were convicted and then had the judgementsquashed after it was revealed that the prosecution had withheld vital evidence of undercover police officer Mark Kennedy from the court.

Elkan Abrahamson of Jackson Canter won the outstanding achievement award for his representation of many families of Hillsborough victims. Several of them were active campaigners who report having their phones tapped. Abrahamson’s firm also have a documented case of a Hillsborough campaigner being ‘shadowed like terrorists,’ as Steve Rotherham MP put it.

Speaking after the Home Secretary announced the judge-led public inquiry into undercover policing in March, Abrahamson said, ‘It will, of course, focus on Lawrence, but the Hillsborough tragedy should equally be subjected to the same scrutiny on this subject of spying’.

Somewhat ironically, the judging panel included Kier Starmer QC who has had involvement on both sides of the undercover police issue. He worked pro bono for the McLibel defendants who, despite occupying courtrooms for the longest trial in English history, were kept ignorant of the fact that at least two of their group were undercover police officers. One of them, Bob Lambert, co-authored the offending leaflet that triggered the trial.

Starmer was also the barrister who represented a group of hunt saboteurs in 1996 who had an eager witness called Jim Sutton, now known to be undercover officer (and Lambert’s protegé) Jim Boyling.

But by the time Sir Christopher Rose’s report into Mark Kennedy and his unit was published in December 2011, Starmer was the Director of Public Prosecutions. The report said the Ratcliffe 20’s case was a one-off based on innocent errors and there was no systemic problem. Even then it was a highly dubious proposition, yet when Starmer was challenged on the point by Channel 4 News and Newsnight he fended off suggestions of a wider problem, asserting that Rose’s finding was good enough.

However, the Drax case had already happened a year earlier in near-identical circumstances. The subsequent overturning of the Drax judgements indicates that there is indeed a systemic problem. Certainly, it leaves the Rose report discredited alongside the pile of piecemeal partisan investigations so far, underlining the need for a single, credible independent public inquiry into all aspects of Britain’s political secret police.

With the help of tenacious lawyers like Schwarz and Abrahamson unpicking the cover-ups, the truth may come.

The police are obliged to provide disclosure and properly outline their case. They have failed to do so, citing a policy of ‘Neither Confirm Nor Deny’ (NCND); they say they cannot ever confirm whether somebody was an undercover police officer, and that this policy is essential to the integrity of important and dangerous undercover work. They went as far as applying to have the case struck out on the grounds that, as they would refuse to give proper testimony in court, they would be denying themselves a fair trial.

The women launched their legal action in December 2011, but it was not until June 2012 that the police first mentioned NCND in relation to the claim. You might think if there had been such a long standing policy this would have been highlighted in the first police response.

There have been innumerable exceptions to NCND, and the women gave the court two large files documenting some instances. After that, and the Ellison review‘s revelations earlier this year about spying on Stephen Lawrence’s family, the police abandoned their strike out the case. They’re still sticking to the ‘policy’ of NCND though.

This puts them in the bizarre position of not naming Mark Kennedy as an undercover police officer. Kennedy hired Max Clifford to sell a gossipy version of his story to the Mail on Sunday – he could scarcely be less secret. More than that, he has been identified in numerous official statements, including a report by Her Majesty’s Inspectorate of Constabulary (HMIC) in February 2012 that said

It is normal practice for the police to neither confirm nor deny the true identity of undercover officers. This is to protect both the officers themselves, and the effectiveness of the tactic. However, the case of Mark Kennedy is one of exceptional circumstances, including his own public revelations, the media interest in him, and the fact that the Court of Appeal named him on 19 July 2011. Because of this, HMIC has chosen on this occasion to use his real name.

The information is out there and, like toothpaste out of the tube, you can’t put it back in. Mark Kennedy has not been magically de-identified. The current backslide shows that the stonewall use of NCND is both a recent invention and a tactic of obstruction.

Of the other four officers named in the womens’ case, JohnDines and Mark Jenner have been extensively documented, and Bob Lambert has not only been identified in the press and the Ellison Review but has given interviews candidly admitting to large parts of his work.

Because Boyling went through a 1997 court case under his false identity as Sutton, a convicted co-defendant has won the right to have the conviction overturned. But in a farcical twist at the hearing earlier this year – after this long-standing policy of NCND had been invented – the police backtracked and would not fully identify Boyling. They confirmed he was a police officer but not an undercover one. As if he might have done the undercover work as a hobby in his spare time. As if confirming that this man whose picture is all over the internet was a police officer doesn’t put him at just as much of a risk as admitting he was an undercover one.

Police lawyers said they weren’t compelled to give any reason why they didn’t oppose the quashing. ‘What kind of justice is that?’ asked the judge. It’s a question we should all be asking.

NCND is another manifestation of the ‘double injustice’ faced by so many victims of police abuse; there is what was done to them, and then there are the tricks of delay, distraction and denial to try to avoid accountability. Many of those who have been spied on – the family of Stephen Lawrence and numerous other black justice campaigns, anti-fascists, environmentalists, Hillsborough families and more – can tell a similar story.

An police service interested in justice would do precisely the opposite. More, these blocks are such blatant decoy tactics, and they know it’s obvious to everyone. But as long as they aren’t forced into actually admitting that’s the case, they can conceal the truth of what they’ve done and deny justice to the citizens they abused.

If this is their response to being caught committing the starkly cruel abuse of these women – the most complete invasion of privacy that it is possible for the state to enact – then what hope can we have for the promised public inquiry? The fight against NCND is not just a fight for the women concerned, but for everyone spied on by Britain’s political secret police, and for the hope of eventual truth and justice for the wider society.

Their hearing is on Thursday 5th and Friday 6th June at the Royal Courts of Justice on The Strand in London. Police Spies Out of Lives have asked:

If you are in London, please join us outside the Royal Court of Justice, The Strand, from 9am–10am on Thursday 5th June to show your support for the women.

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